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By James McNair, Kentucky Center for Investigative Reporting

This article was produced by the Kentucky Center for Investigative Reporting, a new, nonprofit newsroom from 89.3 WFPL News and Louisville Public Media. Read more at kycir.org.

ELIZABETHTOWN -- Getting busted with a small amount of fake marijuana led to a more expensive lesson in criminal justice than Timothy Lee Cook could have imagined.

Cook, 54, agreed to a plea deal in Hardin County District Court last summer that kept him out of jail, but cost him $186 in fines and court fees. He couldn’t afford it himself. Bedeviled by mental disorders, he hasn’t held a job for more than 20 years. His 74-year-old mother put up the money.

Now Cook is tasting the cost of probation. Every month for two years, he has to pay a $25 monitoring fee to a company that serves as a privatized probation agency. Had he been arrested in one of the many Kentucky counties that monitor misdemeanor offenders themselves, the service wouldn’t have cost him a dime. And if Cook’s probation company had based its fee on his ability to pay, as district judges are supposed to ensure, his monitoring would be free or discounted.

“I told them I was on disability because I have dyslexia and bipolar disorder, and I figured, well, maybe they’d work with me a little bit, maybe make my payments a little cheaper. But, no, it’s one flat rate,” Cook said before leaving on his 32-mile drive home to Leitchfield.

Cook’s was one of 38,780 state misdemeanor cases that ended with probated jail sentences in 2015. How many of those went to private companies is anyone’s guess because no one keeps track. The companies operate under no contracts, no legal agreements with the state, counties or the courts they serve. No one in the Kentucky Administrative Office of the Courts knows how many such companies operate in the state, which counties they serve, how many defendants they monitor or how much they charge. No state agency monitors the monitors.

“The criminal justice system is a fundamental responsibility of government,” said Kentucky Public Advocate Ed Monahan, whose office runs the statewide public defender network. “We would never contract out for police, judicial or prosecution functions. The supervision of a person on probation should not be a profit center for a private company.”

The irony in Cook’s case is that, had he been arrested in, say, Kenton County or Oldham County, his supervision would have cost him nothing. As in many Kentucky counties, judges there simply schedule probationers for “show cause” hearings, where they can prove that they lived up to their end of a plea deal.

“We take care of our own,” said Kenton County Chief District Judge Ann Ruttle. “Court costs are enough for people. I can’t add to it.”

District court judges do have the authority, under state law, to put misdemeanor defendants under the watch of state probation officers. But the state Division of Probation and Parole -- part of the Kentucky Department of Corrections -- says it doesn’t have the budget to do the work in more than 18 counties. Even there, P&P takes on only some -- not all -- cases.

“If we see a large influx in the number of misdemeanor probationers we are ordered to supervise, we would have to request additional state revenue through the budgetary process,” said DOC spokesman Mike Caudill.

That has prompted judges and county attorneys in places like Kenton County and Oldham County to assume the role of probation supervisors themselves -- at no cost to defendants. As a result, probation monitoring can be free in one county, a pricey proposition in another. Defendants supervised by state probation officers are charged $10 to $25 per month, an amount that can be lowered by judges based on their ability to pay. But the state doesn’t command the array of fees that companies like Kentucky Alternative Programs of Newport do.

“Individuals charged then convicted of a petty offense in County A may have to pay a lot more money than someone who’s similarly situated in County B, just by the sheer fact that County A utilizes private probation companies,” said Bill Sharp, legal director for theAmerican Civil Liberties Union of Kentucky.

Although no one knows for sure, Kentucky Alternative Programs appears to be the state’s major provider of probation-monitoring services for misdemeanor defendants. It has six offices statewide and serves nearly 8,000 probationers in a 38-county span from Carter County in the east to Daviess County in the west.

KAP was founded in 1989 by Terry Mann after he served 14 years in the Kentucky House of Representatives. Mann told WFPL’s Kentucky Center for Investigative Reporting that the state has never met the probation-monitoring needs of Kentucky’s district courts.

“We provide a service that wouldn’t be there if we weren’t there,” he said. “The district judges would have no way of knowing whether or not a person had fulfilled a condition of probation or conditional discharge or whatever a judge ordered. And I think the judges want there to be accountability on the part of the offender.

“It doesn’t cost the taxpayers any money,” Mann added. “We have no affiliation with the state, so the offender supports the program.”

A 1999 state Supreme Court rule requires private monitoring companies to give judges monthly reports showing how many pro bono cases they have taken. The Kentucky ACLU tried to poll district judges statewide to determine compliance in 2015 but didn’t receive a single response. Brought to his attention, Jerry Crosby -- the judge for Oldham, Trimble and Henry counties and president of the Kentucky District Judges Association -- notified judges of the reporting requirements in September. Until then, KAP was not submitting those reports.

It is now. In Campbell County, for instance, KAP says it took a total of 168 cases in October and November -- 25 cases pro bono and 40 cases at a discounted rate. In Boone County, KAP reports having taken 44 cases during that time -- six pro bono and eight on a sliding scale.

Judges, though, do not personally verify the accuracy of the KAP data.

“If you’re asking me if I’m 100 percent certain that all of the information given here is correct, I cannot answer that,” said Campbell County Chief District Judge Gregory Popovich.

“They’re a private company,” said Boone County District Judge Jeffrey Smith. “How they administer that sliding scale, that question might be best asked of them. I’m not there.”

Jeremy Aldridge, who said he has practiced law in Hardin County District Court for 14 years, was dumbstruck to hear that KAP offered to take supervision cases for free or at a discount. “I’ve never heard of anybody having to pay anything less than the full rate, the full supervision fee in Hardin County,” he said.

Mann insists that KAP “frequently” takes cases pro bono or on a sliding scale. Pressed for names of people who were monitored for free, he gave two who were willing to be interviewed.

One, William Welch of Stanford, said he was assigned to KAP last year. He pays $20 a week for a 28-week domestic-violence counseling class run by a separate organization. Declared indigent and represented by a public defender, Welch was excused from paying KAP’s $25 monthly monitoring fee.

The other, Edward Wilkerson of Danville, didn’t get a fee waiver until this month. Ordered into KAP’s supervision in August on a marijuana possession case, Wilkerson said he has paid $20 a month to KAP for monitoring and $27 for each of five randomly scheduled drug tests.

“They called me for a drug screen last week, and I told them I didn’t have the money to pay for it,” said Wilkerson, who was disabled by a stroke in August 2014 and hasn’t worked since. “They said I would not have to pay for the drug screening no more, but I would have to pay the monitoring fee.”

Owners of other companies say they follow the rule. Kyle Thompson, owner of Capital Court Authority in Frankfort, said he “might” take one pro bono case a month. The 2-year-old company specializes in drug and alcohol testing but also does auto insurance checks, for about $30 a month, and community service verification, for a one-time fee of $104. Thompson said he is sensitive to clients’ ability to pay.

“When people come into my office, they already have a court fine and court costs, so they’re already into hundreds of dollars of costs,” said Thompson, a former Franklin County assistant prosecutor. “It’s going to be a tough six months or so that they’re going to go through, so we work with the individuals when it comes to payments. If the judge says we’re going to monitor an individual for free, we do it.”

State Supreme Court rules allow judges to assign probationers to private companies “only when” no probation officers, nonprofits or volunteers are available. Popovich, the Campbell County judge, said he thinks he began using KAP in the late 1990s. He said it is too “unwieldy” supervising probationers himself.

“I have never had a problem with them,” Popovich said of KAP. “I think they’ve done an excellent job, because if I heard anything bad, I’d act real quickly.”

Popovich’s connection with KAP extends beyond the courtroom, though. Going back to 2004, the judge has received more than $2,300 in election campaign contributions from KAP officers and directors. In 2014, KAP Vice President Matthew Seyfried hosted a Popovich fundraiser at his house in Alexandria, and he and KAP founder Mann contributed a combined $954 for catering. Popovich said he could not recall how much money he received from that fundraiser.

 “As far as what monies I’ve got, you’d have to ask the campaign treasurer because I really don’t know,” he said. “You obviously know more about campaign contributions I’ve received than I do.”

Popovich denied showing favoritism to KAP over its competition, and Mann said the contributions were “absolutely not” intended to ensure a continuing stream of business from Campbell County District Court. The county’s other district judge, Karen Thomas, likes the KAP service because it saves people a return trip to court. She has received no campaign money from KAP employees.

While KAP banks on business from Campell County, a Newport-based competitor, Commonwealth Mediation Services -- a nonprofit -- claims that it gets just a trickle of referrals. Company President Melinda Sprinkle, a former KAP employee, said she started CMS in 2007. She is frustrated by her inability to get business from the court.

“We reached out to the judges in person in writing. Basically we got little to no response,” Sprinkle said. “I think they have a really tight relationship with KAP.”

One thing that Mann says he doesn’t do -- and Popovich says he won’t allow -- is ask that offenders be jailed if they don’t pay their fees to KAP. If people don’t pay, “We get burned,” Mann said. “We’ve operated at a loss the last two years.”

But a former KAP co-owner, Ronnie Keene, cast the company’s financial picture in a different light. In a lawsuit filed in Campbell County Circuit Court in 2011, the former 31 percent stakeholder alleged the company spent exorbitantly on condos in Florida and Tennessee, vehicles, travel, restaurant and bar tabs and country club fees that had nothing to do with business.

“They looted the company for their personal gain,” Keene said in his lawsuit, which ended with a jury verdict of $79,000 in back compensation to Keene in 2014. KAP and Mann denied the claims in the suit.

(Listen to reporter James McNair's radio feature on 89.3 WFPL)

Sharp, the ACLU legal director, thinks the state should keep a closer eye on the industry. State Supreme Court rules require that companies take an unspecified “proportional” amount of cases “pro bono,” or free of charge, and bill people according to a sliding scale based on their ability to pay. He said the public has no way to verify compliance by companies and enforcement by judges.

“We’re simply left to guess whether or not adequate oversight of the private probation companies is actually happening,” Sharp said.

Crosby, the district judges association president, said it is the state’s “obligation” to supervise misdemeanor probationers.

Jaclyn Milam of Franklin said she had a case of sticker shock when her probation supervision was assigned to a private company. She pleaded guilty to a marijuana possession charge on Dec. 10, paid $153 in fines and court costs and agreed to report to Simpson County Monitoring Services for a criminal background check. Only after reporting did she learn that cost of monitoring for any future misconduct -- $125 due by Jan. 10 -- was more than she could afford on her secretary salary.

“I don’t have $125,” Milam said. “I have two babies and Christmas.”

Reporter James McNair can be reached at jmcnair@kycir.org and (502) 814.6543.

James McNair is a veteran investigative reporter who specializes in business and finance issues. McNair has spent 30 years in journalism, having worked as a staff reporter for the Miami Herald and the Cincinnati Enquirer. His reporting has unearthed fraudulent schemes and dubious business practices. He has won journalism awards in five states.

Originally published by the Kentucky Center for Investigative Reporting on January 20, 2016. Reprinted with permission of the managing editor.